Guichard

Since its opening brief, Flytenow maintained that common carriage was a common law term. The FAA introduced a distinction between common law and their own interpretation of common carriage, to which Flytenow responded to in its Reply.

In any event, the FARs are dispositive on the issue: "Where it is doubtful that an operation is for “compensation or hire”, the test applied is whether the carriage by air is merely incidental to the person's other business or is, in itself, a major enterprise for profit." See definition of commercial operator, http://www.ecfr.gov/cgi-bin/text-idx?rgn=div8&node=14:1.0.1....

Abdul, profit seeking is the most important element of a common carrier (a common law term). The term “common carriage” is well-known and understood by the courts, and refers to a commercial transportation enterprise that is willing to take all comers who are willing to pay a fare, without refusal. See CSI AVIATION SERVICES v. US Dept. of Transp., 637 F. 3d 408 (Court of Appeals, Dist. of Columbia Circuit 2011). A commercial enterprise is a business pursuit for livelihood or profit. See STONE V. DISTRICT OF COLUMBIA, 198 F.2d 601 (D.C. Cir. 1952). In contrast, there is no possibility for profit when expense sharing.

At Oral Argument, the FAA agreed the common law definition of common carriage applied.

See, https://soundcloud.com/flytenow/judge-wilkins-on-whether-the....

Despite this, the court did not apply the common law definition. Indeed, they ignored the question, "we therefore do not consider Flytenow’s argument that the FAA’s decision contravenes the common law."

So, the determination is that Flytenow pilots are engaged in common carriage, yet the central element of common carriage - commercial enterprise for profit - was not addressed by the Court.

Your last statement [Flying is dangerous and should not be subject to the race to the bottom and rent-seeking behavior that is the "sharing economy"] cuts against your own argument. There is no "rent-seeking" behavior where there is no possibility for profit. That's the whole point of the common carriage analysis, and why the FAA and the Court got it wrong.

Flytenow's fee is irrelevant because the rules apply to a pilot, not a company. It's the pilot who can't receive compensation. For example, the outcome (according to the FAA) would be exactly the same whether or not a fee is charged by the company.

The entire ruling was about compensation. Additionally, neither the Federal Aviation Regulations nor the FAA has ever recognized any distinction between friends or strangers, i.e., a prior existing relationship has no bearing on common purpose. Otherwise, how could you decide if common purpose exists? Is there a secret handshake? One conversation, two conversations? Maybe, just asking: can we be friends so we can fly together? That's a slippery slope.

The blog post merely points out a very significant pitfall in the FAA ruling. By the way, I would research the actual requirements of carrying passengers for hire before saying all you need is a commercial certificate. You need to comply with Part 135 which has very detailed and strict operational requirements and legal aspects.